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September 4, 2020 Digest

Posted By Administration, Tuesday, September 8, 2020

Kansas Court of Appeals

criminal 

criminal law—criminal procedure—evidence—juries—prosecutors
state v. olsman
elk district court—affirmed in part,
reversed in part, vacated in part
no. 120,119—september 4, 2020

FACTS: Jury convicted Olsman of kidnapping and attempted rape. On appeal he claimed: (1) insufficient evidence supported the kidnapping conviction because confinement of the victim was incidental and inherent in the attempted rape; (2) district court erred in ruling the testimony of victim’s sister about victim’s reputation for dishonesty was inadmissible for lack of foundation; (3) district court erroneously instructed jury on kidnapping; (4) in closing argument and rebuttal prosecutor improperly commented on Olsman’s and victim’s credibility and inflamed passions of jury; (5) district court erred in denying Olsman’s motion for a new trial which argued in part that a deputy improperly referred to Olsman having been in jail on a previous occasion; and (6) cumulative error denied him a fair trial.

ISSUES: (1) Sufficiency of the evidence—kidnapping, (2) exclusion of testimony, (3) jury instruction—kidnapping, (4) prosecutorial error, (5) motion for new trial, (6) cumulative error

HELD: Olsman’s kidnapping conviction is reversed and kidnapping sentence is vacated. State v. Buggs, 219 Kan. 203 (1976), State v. Cheers,  231 Kan. 164 (1982), and State v. Richmond, 250 Kan. 375 (1992), are factually distinguished as involving takings or confinements that substantially facilitated the commission of other crimes. Unpublished Court of Appeals case, is found to be similar to Olsman’s case. Applying Buggs analysis, evidence in this case is insufficient to support the kidnapping conviction.

            District court did not err in relying on State v. Penn, 41 Kan. App. 2d 251 (2009), for the foundational requirements for admitting reputation evidence. Olsman’s argument that Penn was wrongly decided is unpersuasive. Under circumstances in case, including lapse of five years between events that formed the basis for victim’s reputation and events leading to trial, district court’s determination was not an abuse of discretion. Even if district court may have incorrectly stated that victim and her sister were not of the same community, Olsman failed burden of establishing that they were. Olsman’s constitutional claim fails with no showing of error in district court’s evidentiary ruling.

            Reversal of Olsman’s kidnapping conviction renders his jury instruction claim moot.

            Prosecutor’s limited and isolated closing argument statements, in particular referring to Olsman as a “liar,” were improper but overall nature of prosecutor’s argument was premised in reasonable inferences fairly derivable from the evidence and directed jury to reach its own conclusions. Prosecutor’s rebuttal comments were an improper appeal to jury for sympathy toward the victim. In light of entire record, however, no reasonable probability these comments affected outcome of the trial.

            Olsman fails to explain how district court’s admonishment to the deputy and its curative instruction to the jury was insufficient to cure any prejudicial effect of the deputy’s statement. No abuse of district court’s discretion is demonstrated.

            With reversal of Olsman’s kidnapping conviction, only identified errors bearing on cumulative error analysis are prosecutor’s comments and deputy’s testimony. On overall strength of evidence the limited prejudice from these two harmless errors did not aggregate into reversible error.    

CONCURRENCE and DISSENT (Warner, J.): Joins majority’s analysis of all claims but for its conclusion that Olsman’s confinement of victim within his home was insufficient to support the jury’s kidnapping verdict. Jury decided whether Olsman’s grabbing of victim’s arm and preventing her from leaving was an independently significant act, and sufficient evidence supported its assessment. Majority ventured into jury’s fact-finding role by reweighing the evidence supporting Olsman’s kidnapping conviction.

STATUTES: K.S.A. 2019 Supp. 22-3501(1), 60-455, -460(z); K.S.A. 2015 Supp. 21-5408(a)(2), -5503(a)(1)(A); K.S.A. 60-419, -420. -422(d), -446, -447(a), -460(z)

Tags:  criminal law  criminal procedure  Elk District Court  evidence  juries  prosecutors 

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